The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1887-04-26
Supreme Court of the Hawaiian
ands.--In Bsnco. April Term. Is
In RE APPLICATION OF NJ. BRITo FOR
WRIT OF HABEAs CoRPUs.

BEFORE JUDD c. j., McULLY j., PRESTON j.,
BICKER7oN ]. AND FoRNAEDER ].
Opinion Of tho Coart By CHIEF Justice JUDD.
The case comes to us upon ques,
tons reserved by Mr.. Justice Preston
as follows:
LIST. Does the mittimus disclose any
offense for which the prisoner may be
punished?
I'd. If yes, is the punishment in
ficted upon the prisoner legal under
the statute of the last session of the
Legislature, regulating the importa
ton and sale of opium?
The mittimus in question is from
the Police Court of Honolulu, dated
10Th March, 1887. 1t is entitled in the
usual way, addressed to the Marshal
and recites that, whereas Manuel Brito
has this day been convicted in our
Police Court of Honolulu, Island of
Oahu, for the offense of having opium
unlawfully in possession, contrary to
Section Of Session Laws of 1856, APP
proved October Is, 1886, and upon
conviction thereof, the said Court did
adjudge and determine thath he should
be imprisoned at hard labor for the
term of two years and also should pay
a fine of one thousand dollars, ETC.,
etc.
The question is whether Section 4
OF the Act entitled, IAN Act to regu-
late the Importation and sale of opium
In this Kingdem," discloses any of
tense for which the prisoner may be
punished.
The Section reads as follows:
every person not having a license
who shall have possession of any OPT
UNI contrary to the provisions of Sec
ton 3 of this Act, or who shall sell or
furnish any opium or preparation of
opium to any person or persons con
trary to law, shall upon conviction
thereof, be fined in a sum not less
than one thousand dollars nor more
than five thousand dollars, and be
imprisoned at hard labor for any term
not more than ten years nor less than
two years"
The principle that penal statutes are
to be construed strictly and are never
to be extended by implication, has
been repeatedly affirmed by this Court.
Dwarris expresses it in this way:
1.-The general words of penal statute
shall be restrained for the benefit of
HIM against whom the penalty is in
ficted." Potter's DWarris, p. 245.
1t is urged upon us that the Act
under consideration is revenue law:
that its object is to subject opium to
sale by licensed dealer under Ger
tain restrictions, and that it is not
penal law, and therefore the rule of
construction above referred to does
not apply.
We think otherwise. Section au-
thorizes the imposition of money
penalty, whose minimum is one thou
sand, and whose maximum is five
thousand dollars and Imprisonment
at hard labor for any term not more
than ten years nor less than two
years
By our law felony is defined to
mean such offenses as are punishable
with death OF Imprisonment for
longer period than two years, or by
the forfeiture of any civil or political
right, and also larceny Penal Code,
Chap. 1, Sec. 2.
We can see no reason why statute |
which creates a felony can not be con-
a penal statute, to which the
above mentioned rule of construction
must apply.
The words of Section 4, which are |
put before us as describing the Of
tense of the prisoner are, "eUery person
not hdUing license soko shall haUe possess
ion Of opium contrary to the provisions Of |
Sections Of this Act s shall upon |
thereof be fined, ETC." 1t |
is essential in the first place, that the |
person shall not have 'Gieense."
Does the license intended here mean
the vendors license, by which he is
to import and sell opium?
Or does it refer to one of the two eli
censes" mentioned in Section of the
Act, j. e. license from the Marshal
or the license from a physician? Up
to Section 4 Of the Act, the only L.
cense spoken of is the vendors license
and we take it that this must be the
license intended to be meant. To his
conviction it is necessary, secondly,
that he have possession of opium, and
thirdly that such possession shall
be contrary to the provisions of Sec
ton 3.
Now Section 2 prescribes that the
person holding such license, Ii. e. the
licensed vendor) shall (D keep in a
book of record the names of all per-
sons to whom he has sold any opium,
with (a) date of sale, the (b) quantity
of opium sold, the (c) name of the
physician issuing the certificate on
which the sale is made, and Id the
date of such certificate
% Such record book shall be kept
10y the icensee) in the English and
languages, and shall be open
TO inspection of the police and the
Minister of Interior.